Mobile View
Main Search Advanced Search Disclaimer
Cites 28 docs - [View All]
Section 438 in The Indian Penal Code
Section 437 in The Indian Penal Code
The Indian Penal Code
Section 439 in The Indian Penal Code
Section 438 in The Code Of Criminal Procedure, 1973
Citedby 257 docs - [View All]
Syed Zafrul Hassan And Anr. vs State on 7 January, 1986
S.Swaminathan vs The State on 3 December, 2008
Ganesh Raj vs State Of Rajasthan And Ors. on 1 April, 2005
S. Saravanan Alias ... vs The State on 12 August, 1994
S. Harsimran Singh vs State Of Punjab on 25 November, 1983

User Queries
View the actual judgment from court
Supreme Court of India
Gurbaksh Singh Sibbia Etc vs State Of Punjab on 9 April, 1980
Equivalent citations: 1980 AIR 1632, 1980 SCR (3) 383
Author: Y Chandrachud
Bench: Chandrachud, Y.V. (Cj), Bhagwati, P.N., Untwalia, N.L., Pathak, R.S., Reddy, O. Chinnappa (J)
           PETITIONER:
GURBAKSH SINGH SIBBIA ETC.

	Vs.

RESPONDENT:
STATE OF PUNJAB

DATE OF JUDGMENT09/04/1980

BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BHAGWATI, P.N.
UNTWALIA, N.L.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)

CITATION:
 1980 AIR 1632		  1980 SCR  (3) 383
 1980 SCC  (2) 565
 CITATOR INFO :
 R	    1982 SC 149	 (259)
 E&R	    1985 SC 969	 (6,8,12)


ACT:
     Bail-Anticipatory	Bail-Section  438  of  the  Code  of
Criminal Procedure  Code, 1973	(Act 2	of 1974),  Scope of-
Judicial   balancing	of   personal	 liberty   and	 the
investigational powers of the Police, explained.



HEADNOTE:
     The appellant  herein, Sri	 Gurbaksh Singh Sibbia was a
Minister of Irrigation and Power in the Congress Ministry of
the Government	of Punjab.  Grave allegations  of  political
corruption  were  made	against	 him  and  others  whereupon
applications were  filed in  the High  Court of	 Punjab	 and
Haryana under  section 438  of the  Criminal Procedure Code,
praying that  the appellants  be directed  to be released on
bail, in the event of their arrest on the aforesaid charges.
Considering the	 importance of	the matter, a learned single
Judge referred	the applications  to a	Full Bench, which by
its judgment dated September, 13, 1977 dismissed them, after
summarising,  what   according	to  it	is  the	 true  legal
position, of  s. 438 of the Code of Criminal Procedure, 1973
(Act 2 of 1974) thus:
	  (1)	  The  power  under  Section  438,  Criminal
	       Procedure  Code,	  is  of  an  extra-ordinary
	       character and  must be exercised sparingly in
	       exceptional cases only.
	  (2)	Neither Section	 438 nor any other provision
	       of the  Code authorises	the grant of blanket
	       anticipatory  bail   for	 offences   not	 yet
	       committed or  with regard  to accusations not
	       so far levelled.
	  (3)  The said power is not unguided or uncanalised
	       but  all	  the  limitations  imposed  in	 the
	       preceding Section  437, are  implicit therein
	       and must be read into Section 438.
	  (4)	In addition  to the limitations mentioned in
	       Section 437,  the petitioner  must make out a
	       special case for the exercise of the power to
	       grant anticipatory bail.
	  (5)  Where a legitimate case for the remand of the
	       offender to  the police custody under Section
	       167(2) can  be made  out by the investigating
	       agency  or   a  reasonable  claim  to  secure
	       incriminating   material	  from	 information
	       likely to be received from the offender under
	       Section 27  of the  Evidence Act	 can be made
	       out, the	 power under  Section 438 should not
	       be exercised.
	  (6)	The discretion	under Section  438 cannot be
	       exercised with  regard to offences punishable
	       with death  or imprisonment  for life  unless
	       the Court  at that  very stage  is  satisfied
	       that such  a charge  appears to	be false  or
	       groundless.
384
	  (7)	The larger  interest of the public and State
	       demand that  in serious	cases like  economic
	       offences involving  blatant corruption at the
	       higher rungs  of the  executive and political
	       power, the  discretion under  Section 438  of
	       the Code should not be exercised; and
	  (8)  Mere general allegations of mala fides in the
	       petition are  inadequate. The  court must  be
	       satisfied on  materials before  it  that	 the
	       allegations of mala fides are substantial and
	       the  accusation	 appears  to  be  false	 and
	       groundless.
The argument  that the	appellants were men of substance and
position who  were hardly  likely to  abscond and  would  be
prepared willingly  to face  trial was	rejected by the Full
Bench with  the	 observation  that  to	accord	differential
treatment to  the appellants on account of their status will
amount to negation of the concept of equality before the law
and that  it could  hardly be  contended that  every man  of
status, who  was intended  to be charged with serious crimes
including the one under section 409 was punishable with life
imprisonment, "was  entitled to	 knock at  the door  of	 the
Court for anticipatory bail". The possession of high status,
according to  the Full	Bench, is  not	only  an  irrelevant
consideration for  granting anticipatory  bail, but  is,  if
anything, an  aggravating circumstance. Hence the appeals by
special leave.
     The appellants  contended: (a)  The power	conferred by
section 438  to grant  anticipatory bail  is "not limited to
the contigencies"  summarised by  the High  Court;  (b)	 The
power to  grant anticipatory  bail ought  to be	 left to the
discretion of  the Court  concerned, depending	on the facts
and circumstances  of each  particular case;  (c) Since	 the
denial of  bail amounts	 to deprivation of personal liberty;
Courts should  lean against  the imposition  of	 unnecessary
restrictions on	 the scope  of Section	438,  when  no	such
restrictions are  imposed by the legislature in the terms of
that section (d) Section 438 is a procedural provision which
is concerned  with the personal liberty of an individual who
has not been convicted of the offence in respect of which he
seeks bail  and who  must be  presumed to  be innocent.	 The
validity of that section must accordingly be examined by the
test of fairness and which is implicit in Article 21. If the
legislature  itself   were   to	  impose   an	unreasonable
restriction could  have been  struck down as being violative
of Article  21. Therefore,  while determining  the scope  of
section 438,  the Court	 should not  impose  any  unfair  or
unreasonable limitation	 on the individual's right to obtain
an order  of anticipatory  bail. Imposition  of an unfair or
unreasonable limitation	 would be  violative of	 Article  21
irrespective of	 whether it  is imposed by legislation or by
judicial decision.
     Allowing the appeals in part, the Court,
^
     HELD: 1. The society has a vital stake in both of these
interests namely,  personal liberty  and the investigational
power of the police, though their relative importance at any
given time  depends upon  the complexion  and restraints  of
political conditions.  The  Court's  task  is  how  best  to
balance these  interests  while	 determining  the  scope  of
section 438 of the Code of Criminal Procedure, 1973. [393 C-
D]
     2. The  High Court	 and the  Court of Session should be
left to	 exercise their	 jurisdiction under section 438 by a
wise and careful use of their discretion
385
which by  their	 long  training	 and  experience,  they	 are
ideally suited	to do.	The ends  of justice  will be better
served by  trusting these  courts to  act objectively and in
consonance with principles governing the grant of bail which
are recognised	over the  years, than  by divesting  them of
their discretion  which the  legislature has  conferred upon
them,  by   laying  down   inflexible	rules	of   general
application. It	 is customary,	almost chronic,	 to  take  a
statute as  one finds it on the ground that, after all, "the
legislature in	its wisdom"  has thought  it fit  to  use  a
particular  expression.	  A  convention	 may  usefully	grow
whereby the  High Court	 and the  Court of  Session  may  be
trusted to  exercise their  discretionary  powers  in  their
wisdom, especially when the discretion is entrusted to their
care by the legislature in its wisdom. If they err, they are
liable to be corrected. [417 B-D]
     3. Section	 438(1) of  the Code  lays down	 a condition
which has  to be  satisfied before  anticipatory bail can be
granted. The  applicant must  show that	 he has	 "reason  to
believe" that he may be arrested for a non-bailable offence.
The use of the expression "reason to believe" shows that the
belief that the applicant may be so arrested must be founded
on reasonable  grounds. Mere  'fear' is	 not  'belief',	 for
which reason it is not enough for the applicant to show that
he has	some sort  of a	 vague apprehension that some one is
going to  make an  accusation against  him, in	pursuance of
which he may be arrested. The grounds on which the belief of
the applicant  is based	 that he  may be arrested for a non-
bailable offence,  must be  capable of being examined by the
court objectively,  because it	is then alone that the court
can determine  whether the  applicant has  reason to believe
that he	 may be	 so  arrested.	Section	 438(1),  therefore,
cannot	be  invoked  on	 the  basis  of	 vague	and  general
allegations, as	 if to	arm oneself  in perpetuity against a
possible arrest.  Otherwise, the  number of applications for
anticipatory bail  will be  as large,  as, at  any rate, the
adult populace.	 Anticipatory bail is a device to secure the
individual's liberty;  it  is  neither	a  passport  to	 the
commission of  crimes nor a shield against any and all kinds
of accusation, likely or unlikely. [417 E-H, 418 A]
     Secondly, if  an application  for anticipatory  bail is
made to the High Court or the Court of Session it must apply
its own	 mind to  the question and decide whether a case has
been made  out for granting such relief. It cannot leave the
question for  the decision of the Magistrate concerned under
Section 437  of the  Code, as  and when	 an occasion arises.
Such a	course will  defeat the	 very object of Section 438.
[418 A-B]
     Thirdly, the  filing of  a First  Information Report is
not a condition precedent to the exercise of the power under
Section 438.  The imminence  of a likely arrest founded on a
reasonable belief can be shown to exist even if an F.I.R. is
not yet filed. [418 B-C]
     Fourthly, anticipatory  bail can  be granted even after
an F.I.R.  is filed,  so long  as the applicant has not been
arrested. [418 C]
     Fifthly,  the  provisions	of  Section  438  cannot  be
invoked after  the arrest  of  the  accused.  The  grant  of
"anticipatory bail"  to	 an  accused  who  is  under  arrest
involves a  contradiction in terms, in so far as the offence
or offences  for which	he is arrested, are concerned. After
arrest, the  accused must  seek his remedy under Section 437
or Section  439 of  the Code,  if he wants to be released on
bail in	 respect of  the offence or offences for which he is
arrested. [418 C-E]
386
     4. However,  a "blanket  order"  of  anticipatory	bail
should not  generally be  passed. This	flows from  the very
language of the section which requires the appellant to show
that he	 has "reason  to believe" that he may be arrested. A
belief can  be said to be founded on reasonable grounds only
if there  is something	tangible to  go by  on the  basis of
which it  can be said that the applicant's apprehension that
he may	be arrested  is genuine.  That is  why, normally,  a
direction should  not issue  under  Section  438(1)  to	 the
effect	that   the  applicant  shall  be  released  on	bail
"whenever arrested  for which ever offence whatsoever". That
is what	 is meant by a 'blanket order' of anticipatory bail,
an order  which serves	as a blanket to cover or protect any
and every  kind of  allegedly unlawful activity, in fact any
eventuality, likely or unlikely regarding which, no concrete
information  can   possibly  be	 bad.  The  rationale  of  a
direction  under   Section  438(1)  is	the  belief  of	 the
applicant founded  on reasonable  grounds  that	 he  may  be
arrested for  a non-bailable  offence. It  is unrealistic to
expect the  applicant to  draw up  his application  with the
meticulousness of a pleading in a civil case and such is not
requirement of	the section.  But specific  events and facts
must be	 disclosed by  the applicant  in order to enable the
court to  judge of  the reasonableness	of his	belief,	 the
existence of  which is	the sine  qua non of the exercise of
power conferred by the section. [418 E-H, 419 A]
     Apart from	 the fact  that the  very  language  of	 the
statute compels	 this construction,  there is  an  important
principle involved  in the  insistence that  facts,  on	 the
basis of  which a  direction under Section 438(1) is sought,
must be	 clear and  specific, not  vague and  general. It is
only by	 the observance	 of that  principle that  a possible
conflict between  the right  of an individual to his liberty
and the	 right of  the police  to  investigate	into  crimes
reported to them can be avoided. [419 A-C]
     A blanket	order of anticipatory bail is bound to cause
serious interference with both the right and the duty of the
police in the matter of investigation because, regardless of
what kind  of offence  is alleged  to have been committed by
the applicant  and when,  an order of bail which comprehends
allegedly unlawful  activity of	 any description whatsoever,
will prevent the police from arresting the applicant even if
the commits,  say, a  murder in	 the presence of the public.
Such an	 order can  then become a charter of lawlessness and
weapon to  stifle prompt  investigation into  offences which
could not  possibly be predicated when the order was passed.
Therefore, the	court which  grants anticipatory  bail	must
take care  to specify  the offence or offences in respect of
which alone  the order	will be	 effective. The power should
not be exercised in a vacuum. [419 C-E]
     5. An  order of bail can be passed under section 438(1)
of the	Code without  notice to	 the Public  Prosecutor. But
notice	should	 issue	to  the	 public	 prosecutor  or	 the
Government Advocate  forthwith	and  the  question  of	bail
should	be  re-examined	 in  the  light	 of  the  respective
contentions of	the parties.  The ad-interim  order too must
conform to  the requirements  of the  section  and  suitable
conditions should  be imposed  on the applicant even at that
stage. [419 E-F]
     6. Equally	 the operation	of  an	order  passed  under
section 438(1)	need not  necessarily be limited in point of
time. The  Court may,  if there	 are reasons  for doing	 so,
limit the  operation of	 the order  to a  short period until
after the  filing of  an F.I.R.	 in respect  of	 the  matter
covered by  the order.	The applicant  may in  such cases be
directed to obtain an order of bail under Section 437 or 439
of the	Code within  a reasonably  short  period  after	 the
filing of the F.I.R.
387
as aforesaid. But this need not be followed as an invariable
rule. The  normal rule	should be not to limit the operation
of the order in relation to a period of time. [419 F-H]
     7. Bail  is  basically  release  from  restraint,	more
particularly release from the custody of the police. The act
of arrest directly affects freedom of movement of the person
arrested by  the police, and speaking generally, an order of
bail gives  back to  the accused  that freedom	on condition
that he will appear to take his trial. Personal recognizance
suretyship bonds  and such other modalities are the means by
which an  assurance is	secured from the accused that though
he has been released on bail, he will present himself as the
trial of  offence or offences of which he is charged and for
which he was arrested. [397 E-G]
     The distinction  between an  ordinary order of bail and
an order  of anticipatory bail is that whereas the former is
granted after  arrest and  therefore means  release from the
custody of the police, the latter is granted in anticipation
of arrest  and is  therefore effective at the very moment of
arrest. Police	custody	 is  an	 inevitable  concomitant  of
arrest for  non-bailable offences.  An order of anticipatory
bail constitutes,  so to  say, an  insurance against  police
custody following  upon arrest	for offence  or offences  in
respect of which the order is issued. In other words, unlike
a post-arrest  order of	 bail,	it  is	a  pre-arrest  legal
process which  directs that if the person in whose favour it
is issued  is  thereafter  arrested  on	 the  accusation  in
respect of  which the  direction  is  issued,  he  shall  be
released on  bail. Section  46(1) of  the Code	of  Criminal
Procedure which	 deals with  how arrests  are  to  be  made,
provides that  in making  the arrest  the police  officer or
other person  making the  arrest "shall	 actually  touch  or
confine the  body of the person to be arrested, unless there
be a  submission to  the  custody  by  word  or	 action".  A
direction  under   section  438	  is  intended	 to   confer
conditional immunity  from this 'touch' or confinement. [397
G-H. 398 A-B]
     8. No one can accuse the police of possessing a healing
touch nor  indeed does	anyone have  misgivings in regard to
constraints consequent	upon confinement  in police custody.
But, society  has come	to accept  and acquiesce in all that
follows upon  a police	arrest	with  a	 certain  amount  of
sangfroid, in  so  far	as  the	 ordinary  rut	of  criminal
investigation is  concerned. It	 is  the  normal  day-to-day
business of  the police	 to investigate into charges brought
before them and, broadly and generally, they have nothing to
gain, not  favours  at	any  rate,  by	subjecting  ordinary
criminal  to   needless	 harassment.  But  the	crimes,	 the
criminals and  even the	 complaints can occasionally possess
extraordinary features.	 When the  even flow of life becomes
turbid, the  police can	 be  called  upon  to  inquire	into
charges arising	 out of	 political antagonism.	The powerful
processes  of	criminal  law  can  then  be  perverted	 for
achieving   extraneous	  ends.	   Attendant	upon	such
investigations, when  the police  are not free agents within
their sphere  of duty,	is a  great amount of inconvenience,
harassment and	humiliation. That  can even take the form of
the  parading	of  a	respectable  person  in	 hand-cuffs,
apparently on  way to  a court	of justice. The foul deed is
done when  an adversary	 is exposed  to social	ridicule and
obloquy, no  matter when and whether a conviction is secured
or is  at  all	possible.  It  is  in  order  to  meet	such
situations, though  not limited to these contingencies, that
the power to grant anticipatory bail was introduced into the
Code of 1973. [398 C-F]
     9. Clause (1) of Section 438 is couched in terms, broad
and unqualified.  By any  known canon of construction, words
of width and amplitude ought not
388
generally to  be cut down so as to read into the language of
the statute  restraints and conditions which the legislature
itself did  not think it proper or necessary to impose. This
is especially  true when the statutory provision which falls
for consideration  is designed	to secure  a valuable  right
like  the   right  to  personal	 freedom  and  involves	 the
application of a presumption as salutary and deep grained in
our Criminal  Jurisprudence as the presumption of innocence.
[401 A-C]
     The legislature conferred a wide discretion on the High
Court and  the Court  of Session  to grant anticipatory bail
because	 it  evidently	felt,  firstly,	 that  it  would  be
difficult  to	enumerate   the	  conditions   under   which
anticipatory bail  should  or  should  not  be	granted	 and
secondly; because  the intention  was to  allow	 the  higher
courts in  the echelon	a somewhat free hand in the grant of
relief in  the nature  of anticipatory	bail. That  is	why,
departing from	the terms  of Sections	437 and 439, Section
438(1) uses the language that the High Court or the Court of
Session "may, if it thinks fit" direct that the applicant be
released on  bail. Sub-section	(2)  of	 Section  438  is  a
further and  clearer manifestation  of the  same legislative
intent	to  confer  a  wide  discretionary  power  to  grant
anticipatory bail.  It provides	 that the  High Court or the
Court of Session, while issuing a direction for the grant of
anticipatory bail,  "may include  such	conditions  in	such
directions in the light of the facts of the particular case,
as it  may think fit" including the conditions which are set
out in	clauses (i) to (iv) of sub-section (2). The proof of
legislative intent  can best  be found in the language which
the  legislature   uses.  Ambiguities	can  undoubtedly  be
resolved by resort to extraneous aids but words, as wide and
explicit as  have been	used in	 Section 438,  must be given
their full  effect, especially	when to refuse to do so will
result in  undue impairment of the freedom of the individual
and the presumption of innocence. It has to be borne in mind
that anticipatory  bail is  sought  when  there	 is  a	mere
apprehension of	 arrest on the accusation that the applicant
has committed  a non-bailable  offence. A person who has yet
to lose	 his freedom  by being	arrested asks for freedom in
the event  of arrest.  That is	the stage  at  which  it  is
imperative to protect his freedom, in so far as one may, and
to give full play to the presumption that he is innocent. In
fact, the  stage at  which anticipatory	 bail  is  generally
sought brings  about its  striking  dissimilarity  with	 the
situation  in  which  a	 person	 who  is  arrested  for	 the
commission of  a non-bailable offences asks for bail. In the
latter situation,  adequate data  is available to the Court,
or can	be called  for by  it, in  the light of which it can
grant or  refuse relief	 and while granting it, modify it by
the imposition	of all or any of the conditions mentioned in
Section 437. [404 A-G]
     10. The amplitude of judicial discretion which is given
to the	High Court and the Court of Sessions, to impose such
conditions as they may think fit while granting anticipatory
bail, should  not be cut down, by a process of construction,
by reading  into the  statute conditions which are not to be
found therein like those evolved by the High Court. The High
Court and  the Court  of Session to whom the application for
anticipatory bail  is made  ought to  be left  free  in	 the
exercise of  their judicial discretion to grant bail if they
consider it  fit so  to	 do  on	 the  particular  facts	 and
circumstances of the case and on such conditions as the case
may warrant.  Similarly, they  must be	left free  to refuse
bail if	 the  circumstances  of	 the  case  so	warrant,  on
considerations similar	to those mentioned in Section 437 or
which are  generally considered to be relevant under Section
439 of the Code. [405 B-D]
389
     Generalisations on matters which rest on discretion and
the attempt  to discover  formulae of  universal application
when facts  are bound  to differ from case to case frustrate
the very  purpose of conferring discretion. No two cases are
alike on  facts and  therefore, Courts	have to be allowed a
little	free  play  in	the  joints  if	 the  conferment  of
discretionary power  is to  be meaningful.  There is no risk
involved in  entrusting a  wide discretion  to the  Court of
Session and  the High  Court in	 granting anticipatory	bail
because,  firstly   these  are	 higher	 courts	  manned  by
experienced persons,  secondly their order are not final but
are open  to appellate	or revisional scrutiny and above all
because, discretion  has always	 to be	exercised by  courts
judicially and	not according  to whim, caprice or fancy. On
the other hand, there is a risk in foreclosing categories of
cases in which anticipatory bail may be allowed because life
throws	up   unforeseen	  possibilities	  and	offers	 new
challenges. Judicial  discretion has to be free enough to be
able to	 take these  possibilities in its stride and to meet
these challenges. [405 D-G]
     Hyman and Anr. v. Rose, 1912 A.C. 623; referred to
     11. Judges	 have to  decide cases	as they	 come before
them, mindful  of the  need to	keep passions and prejudices
out of	their decisions.  And it  will	be  strange  if,  by
employing judicial artifices and techniques, this Court cuts
down the  discretion so wisely conferred upon the Courts, by
devising a  formula which  will confine	 the power  to grant
anticipatory bail  within a strait-jacket. While laying down
cast-iron rules in a matter like granting anticipatory bail,
as the	High Court has done, it is apt to be overlooked that
even Judges can have but an imperfect awareness of the needs
of new	situations. Life is never static and every situation
has to	be assessed  in the  context of emerging concerns as
and when  it arises.  Therefore, even  if this Court were to
frame a	 'Code for  the grant  of anticipatory	bail', which
really is  the business	 of the	 legislature, it can at best
furnish broad  guidelines and cannot compel blind adherence.
In which case to grant bail and in which to refuse it is, in
the very nature of things, a matter of discretion. But apart
from the  fact that  the question  is inherently  of a	kind
which calls for the use of discretion from case to case, the
legislature has, in terms express, relegated the decision of
that question  to the  discretion of the Court, by providing
that it	 may grant  bail "if it thinks fit". The concern the
Courts generally  is to	 preserve their	 discretion  without
meaning to  abuse it.  It  will	 be  strange  if  the  Court
exhibits concern  to stultify  the discretion conferred upon
the Courts by law. [406 D-H]
     Discretion, therefore,  ought to be permitted to remain
in the domain of discretion, to be exercised objectively and
open to	 correction by	the higher  courts.  The  safety  of
discretionary power  lies  in  this  twin  protection  which
provides a safeguard against its abuse. [407 F-G]
     12. It  is true that the functions of judiciary and the
police are  in a sense complementary and not overlapping. An
order of  anticipatory bail does not in any way, directly or
indirectly,  take  away	 from  the  police  their  right  to
investigate into  charges made	or to  be made	against	 the
person	released   on  bail.  In  fact,	 two  of  the  usual
conditions incorporated	 in a direction issued under section
438(1) are  those recommended in Sub-section (2)(i) and (ii)
which require  the applicant  to co-operate  with the police
and to	assure that  he shall  not tamper with the witnesses
during and  after the  investigation. While  granting relief
under Section  438(1), appropriate conditions can be imposed
under Section  438(2), so  as  to  ensure  an  uninterrupted
investigation. One of
390
such conditions	 can even be that in the event of the police
making out  a case of a likely discovery under Section 27 of
the Evidence  Act, the	person released	 on  bail  shall  be
liable to  be taken  in police	custody for facilitating the
discovery. Besides,  if and when the occasion arises, it may
be possible  for the  prosecution to  claim the	 benefit  of
Section 27  of the  Evidence Act in regard to a discovery of
facts made  in pursuance of information supplied by a person
released on bail. [409 D, 410 A-D]
     King Emperor v. Khwaja Nazir Ahmed, 71 I.A., 203, State
of U.P.	 v. Deoman  Upadhyaya, [1961]  1 S.C.R.	 p. 14 @ 26;
referred to.
     13. In Balchand Jain v. State of Madhya Pradesh, [1977]
2 SCR  52, this Court was considering whether the provisions
of Section 438 relating to anticipatory bail stand overruled
or repealed  by virtue	of  Rule  184  of  the	Defence	 and
Internal Security  of India  Rules, 1971 or whether both the
provisions can	by rule	 of harmonious	interpretion,  exist
side by	 side. It  was in  that context that it was observed
that "As  section 438  immediately follows Section 437 which
is the	main provision	for bail  in respect of non-bailable
offences, it  is manifest  that the conditions imposed by s.
437(1) are implicitly contained in Section 438 of the Code".
These  observations   regarding	 the  nature  of  the  power
conferred by  section 438 and regarding the question whether
the conditions	mentioned in Section 437 should be read into
section 438 cannot, therefore be treated as the ratio of the
decision. [413 C-D, E]
     The power	conferred by  section 438  is of  an  "extra
ordinary" character  only  in  the  sense  that	 it  is	 not
ordinarily resorted  to like the power conferred by sections
437 and 439. [413 E-F]
     Bal Chand	Jain v.	 State of  M.P., [1977] 2 S.C.R. 52,
distinguished.
     14. Since	denial of  bail amounts	 to  deprivation  of
personal  liberty,   the  Court	  should  lean	against	 the
imposition of  unnecessary  restrictions  on  the  scope  of
section 438,  especially when no such restrictions have been
imposed by  the legislature  in the  terms of  that section.
Section 438  is a  procedural provision	 which is  concerned
with the personal liberty of the individual, who is entitled
to the	benefit of  the presumption of innocence since he is
not, on	 the date  of his application for anticipatory bail,
convicted of  the offence in respect of which he seeks bail.
An over-generous  infusion  of	constraints  and  conditions
which are  not to  be found  in Section	 438  can  make	 its
provisions constitutionally  vulnerable since  the right  to
personal freedom cannot be made to depend on compliance with
unreasonable restrictions. [413 F-H, 414 A]
     Maneka Gandhi  v. Union  of India, [1978] 1 S.C.C. 248;
applied.
     15. In  regard to	anticipatory bail,  if the  proposed
accusation appears  to stem  not from  motives of furthering
the ends  of justice  but from	some ulterior  inotive,	 the
object being to injure and humiliate the applicant by having
him arrested a direction for the release of the applicant on
bail in the event of his arrest would generally, be made. On
the  other  hand,  if  it  appears  likely  considering	 the
antecedents of	the applicant,	that taking advantage of the
order of  anticipatory bail  he will flee from justice, such
an order  would not  be made.  But  the	 converse  of  these
propositions is	 not necessarily  true. That  is to  say  it
cannot be  laid down as an inexorable rule that anticipatory
bail  cannot  be  granted  unless  the	proposed  accusation
appears to be actuated by mala fides;
391
and, equally,  that anticipatory  bail must  be	 granted  if
there is  no fear that the applicant will abscond. There are
several other  considerations, too numerous to enumerate the
combined effect	 of which  must weigh  with the	 court while
granting or  rejecting anticipatory  bail.  The	 nature	 and
seriousness of	the proposed  charges, the  context  of	 the
events likely  to lead	to the	making	of  the	 charges,  a
reasonable possibility of the applicant's presence not being
secured	 at   the  trial,  a  reasonable  apprehension	that
witnesses will be tampered with and "the larger interests of
the public  or the  state" are	some of	 the  considerations
which the  court has  to keep  in  mind	 while	deciding  an
application for anticipatory bail. [415 G-H, 416 A-C]
     State v.  Captain Jagjit  Singh, [1962]  3 S.C.R.	622,
followed.



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 335, 336, 337, 338, 339, 346, 347, 350, 351, 352, 365, 366, 367, 383, 396, 397, 398, 399, 406, 415, 416, 417, 418, 419, 420, 430, 431, 438, 439, 440, 447, 448, 449, 463, 473, 474, 477, 498, 506, 508, 512, 511 of 1977, 1, 15, 16, 38, 53, 69, 70 of 1978, 469, 499 of 1977, 40, 41, 81, 82, 98, 109, 130, 141, 142, 145, 149, 153 and 154 of 1978.

AND Special Leave Petitions (Criminal) Nos. 260, 272, 273, 274, 383, 388 & 479 of 1978.

Appeals by Special leave from the Judgments and Orders dated 13-9-77, 13-9-77, 13-9-77, 15-9-77, 13-9-77, 21-9-77, 19-9-77, 23-9-77, 23-9-77, 23-9-77, 26-9-77, 26-9-77, 30-9- 77, 7-10-77, 16-9-77 9-9-77, 20-9-77, 5-10-77, 20-10-77, 26- 9-77, 20-10-77, 20-10-77, 19-10-77, 24-10-77, 25-10-77, 14- 9-77, 24-10-77, 2-11-77, 2-11-77, 3-11-77, 2-9-77, 7-9-77, 2-9-77, 9-11-77, 22-11-77, 23-11-77, 24-11-77, 13-12-77, 11- 11-77, 23-11-77, 14-12-77, 13-12-77, 20-12-77, 3-1-78, 4-1- 78, 5-1-78, 16-1-78, 18-1-78, 30-1-78, 25-1-78, 18-11-77, 13-12-77, 10-1-78, 13-1-78, 1-2-78, 1-2-78, 8-2-78, 21-12- 77, 1-3-78, 3-3-78, 3-3-78, 10-3-78, 8-3-78, 20-3-78, 17-3- 78, 15-2-78, 17-2-78, 17-2-78, 24-1-78, 14-3-78, 14-3-78 and 27-3-78 of the Punjab and Haryana High Court in Crl. Misc. Nos. 3753 M, 3719 M, 3720 M, 3916 M, 3718 M, 3793 M, 3565 M, 3892 M, 3595 M, 3596 M, 4359 M, 3563 M, 3484 M, 4627 M, 3893 M, 3894 M, 3587 M, 4540 M, 4908 M, 3031 M, 4934 M, 4916 M, 4888 M, 4964 M, 4992 M, 3688 M, 4907 M, 5176 M, 5177 M, 5197 M, 3564 M, 3716 M, 3717 M, 5344 M, 5558 M, 5079 M, 5613 M, 5905 M, 5254 M, 5253 M, 5919 M, 5907 M, 6005 M of 1977, 45 M, 68 M, 102 M, 246 M of 1978, 6114 M of 1977, 462 M, 248 M of 1978, 5240 M, 5892 M of 1977, 19/78, 956/77, 104 M/78, 104 M/78, 605/78, 5995 M/77, 941 M/78, 904 M/78, 1005 M/78, 1137 M/78, 819 M/78, 1260 M/78, 866 M/78 392 & 541 M/78, 4897 M/77, 4758 M/77, 364 M/78, 1167/78, 1168 M/78 and 1381 M/78.

M. C. Bhandare, Gobind Das, K. S. Thapar, Dilip Singh, Mrs. Sunanda Bhandare, A. N. Karkhanis, Deepak Thapar and Miss Malini for the Appellants in Crl. A. Nos. 335, 365, 430, 431, 506, 508, 499/77, 150, 141, 142, 153, 154 and for the Petitioners in SLPs 272-274 of 1978.

Frank Anthony, V. C. Mahajan, O. P. Sharma and R. C. Bhatia for the Appellants in Crl. A. Nos. 336, 337, 338, 350, 396, 397-399, 473, 474/77 and 1, 15, 16, 17, 69, 70, 81, 82, 98 and 149 and 109 of 1978.

Harjinder Singh for the Appellant in Crl. A. 339 of 1977.

B. S. Bindra, S. M. Ashri and Mrs. Lakshmi Arvind for the Appellants in Crl. As. Nos. 348, 366, 415, 420, 477, 511, 512, 469/77 and 145 of 1978.

P. R. Mridul, H. K. Puri, Aruneshwar Prasad and Vivek Sethi for the Appellant in Crl. A No. 346 of 1977.

L. N. Sinha, R. P. Singh, L. R. Singh, Suman Kapoor, Sukumar Sahu and M. C. Bhandare, P. P. Singh and R. K. Jain for the Appellants in Crl. A. Nos. 351, 352, 406, 438-40, 463/77.

S. K. Jain for the Appellant in Crl. A. No. 53/78. V. M. Tarkunde, M. M. L. Srivastava, R. Satish and E. C. Agrawala for the Appellant in Crl. A. Nos. 367/77 and SLP 383/78.

V. C. Mahajan, Harbhagwan Singh, S. K. Mehta, K. R. Nagaraja and P. N. Puri for the Appellant in Crl. A. Nos. 383/78 and 498/77.

K. K. Mohan for the Petitioner in SLP 260/78. A. K. Sen and Rathin Dass for the Appellant in Crl. A. Nos. 40, 41/78.

M. M. L. Srivastava for the Petitioner in SLP 388/78. L. M. Singhvi and N. S. Das Behl for the Appellants in Crl. A. No. 38/78 and for the Petitioner in SLP 479/78.

Soli. J. Sorabjee, Addl. Sol. Genl. Bishamber Lal Khanna, Hardev Singh, R. S. Sodhi and B. B. Singh for the Appellants in Crl. As. Nos. 477-449/77 and respondents in Crl. A. Nos. 335-339,347,350, 352,366,367,388,396-398,406, 415-420,438-440,463,473,474,477, 498, 511/77, 1, 15-17/78, 469, 510/77, 109/78 and for the Petitioners in SLP Nos. 388/78, Crl. A. No. 98/78 & SLP 260/78.

393

Soli. J. Sorabjee Addl. Sol. Genl., Thakur Naubat Singh Adv. Genl. Haryana, S. N. Anand and R. N. Sachthey for the Respondents, in Crl. A. Nos. 365, 430, & 431/77, 508, 499/78 and 38, 141 and 142/78.

M. M. Kshatriya and G. S. Chatterjee for Respondents in Crl. A. Nos. 40 and 41 of 1978.

M. M. Kshatriya and G. S. Chatterjee for Respondents in Crl. A. 346/77.

J. K. Gupta, B. R. Agarwala and Janendra Lal for the Vice-Chancellor, Punjab University in Crl. A. No. 346/77.

The Judgment of the Court was delivered by CHANDRACHUD, C.J.-These appeals by Special Leave involve a question of great public importance bearing, at once, on personal liberty and the investigational powers of the police. The society has a vital stake in both of these interests, though their relative importance at any given time depends upon the complexion and restraints of political conditions. Our task in these appeals in how best to balance these interests while determining the scope of Section 438 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974).

Section 438 provides for the issuance of direction for the grant of bail to a person who apprehends arrest. It reads thus:

"438. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so 394 as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)."

Criminal Appeal No. 335 of 1975 which is the first of the many appeals before us, arises out of a judgment dated September 13, 1977 of a Full Bench of the High Court of Punjab and Haryana. The appellant herein, Shri Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab. Grave allegations of political corruption were made against him and others whereupon, applications were filed in the High Court of Punjab and Haryana under Section 438, praying that the appellants be directed to be released on bail, in the event of their arrest on the aforesaid charges. Considering the importance of the matter, a learned Single Judge referred the applications to a Full Bench, which by its judgment dated September 13, 1977 dismissed them.

The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section

438. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether courts had the inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power. The need for extensive amendments to the Code of Criminal Procedure was felt for a long time and various suggestions were made in different quarters in order to make the Code more effective and comprehensive. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code en-

395

abling the High Court and the Court of Session to grant "anticipatory bail". It observed in paragraph 39.9 of its report (Volume I):

"39.9. The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.
In order to settle the details of this suggestion, the following draft of a new section is placed for consideration:
"497A. (1) When any person has a reasonable apprehension that he would be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. That Court may, in its discretion, direct that in the event of his arrest, he shall be released on bail.
(2) A Magistrate taking cognizance of an offence against that person shall, while taking steps under section 204(1), either issue summons or a bailable warrant as indicated in the direction of the Court under sub-section (1).
(3) if any person in respect of whom such a direction is made is arrested without warrant by an officer in charge of a police station on an accusation of having com-
396
mitted that offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail."
We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion of the court and prefer not to fetter such discretion in the statutory provision itself. Superior Courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused."

The suggestion made by the Law Commission was, in principle, accepted by the Central Government which introduced Clause 447 in the Draft Bill of the Code of Criminal Procedure, 1970 with a view to conferring an express power on the High Court and the Court of Session to grant anticipatory bail. That Clause read thus:

"447. (1) When any person has reason to believe that he would be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)."

The Law Commission, in paragraph 31 of its 48th Report (1972), made the following comments on the aforesaid Clause.

"31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We 397 agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.
We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice. It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith."

Clause 447 of the Draft Bill of 1970 was enacted with certain modifications and became Section 438 of the Code of Criminal Procedure, 1973 which we have extracted at the outset of this judgment.

The facility which Section 438 affords is generally referred to as 'anticipatory bail', an expression which was used by the Law Commission in its 41st report. Neither the section nor its marginal note so describes it but, the expression 'anticipatory bail' is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton's Law Lexicon, is to 'set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is 398 issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". A direction under section 438 is intended to confer conditional immunity from this 'touch' or confinement.

No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sangfroid, in so far as the ordinary rut of criminal investigation is concerned. It is the normal day-to-day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extra-ordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in handcuffs, apparently on way to a court of justice. The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.

Are we right in saying that the power conferred by section 438 to grant anticipatory bail is "not limited to these contingencies"? In fact that is one of the main points of controversy between the parties. Whereas it is argued by Shri M. C. Bhandare, Shri O. P. Sharma and the other learned counsel who appear for the appellants that the power to grant anticipatory bail ought to be left to the discretion of the court concerned, depending on the facts and circumstances of each particular case, it is argued by the learned Additional Solicitor General on behalf of the State Government that the grant of anticipatory bail should 399 at least be conditional upon the applicant showing that he is likely to be arrested for an ulterior motive, that is to say, that the proposed charge or charges are evidently baseless and are actuated by mala fides. It is argued that anticipatory bail is an extra-ordinary remedy and therefore, whenever it appears that the proposed accusations are prima facie plausible, the applicant should be left to the ordinary remedy of applying for bail under Section 437 or Section 439, Criminal Procedure Code, after he is arrested.

Shri V. M. Tarkunde, appearing on behalf of some of the appellants, while supporting the contentions of the other appellants, said that since the denial of bail amounts to deprivation of personal liberty, court should lean against the imposition of unnecessary restrictions on the scope of Section 438, when no such restrictions are imposed by the legislature in the terms of that Section. The learned counsel added a new dimension to the argument by invoking Article 21 of the Constitution. He urged that Section 438 is a procedural provision which is concerned with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail and who must therefore be presumed to be innocent. The validity of that section must accordingly be examined by the test of fairness and reasonableness which is implicit in Article 21. If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a restriction could have been struck down as being violative of Article 21. Therefore, while determining the scope of Section 438, the court should not impose any unfair or unreasonable limitation on the individual's right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned counsel, would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision.

The Full Bench of the Punjab and Haryana High Court rejected the appellants' applications for bail after summarising, what according to it is the true legal position, thus:

(1) The power under Section 438, Criminal Procedure Code, is of an extra-ordinary character and must be exercised sparingly in exceptional cases only;
(2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet committed or with regard to accusations not so far levelled.
(3) The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 400 437, are implicit therein and must be read into Section 438.
(4) In addition to the limitations mentioned in Section 437, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail.
(5) Where a legitimate case for the remand of the offender to the police custody under Section 167 (2) can be made out by the investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out, the power under Section 438 should not be exercised.
(6) The discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be false or groundless.
(7) The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised; and (8) Mere general allegation of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless.

It was urged before the Full Bench that the appellants were men of substance and position who were hardly likely to abscond and would be prepared willingly to face trial. This argument was rejected with the observation that to accord differential treatment to the appellants on account of their status will amount to negation of the concept of equality before the law and that it could hardly be contended that every man of status, who was intended to be charged with serious crimes, including the one under Section 409 which was punishable with life imprisonment, "was entitled to knock at the door of the court for anticipatory bail". The possession of high status, according to the Full Bench, is not only an irrelevant consideration for granting anticipatory bail but is, if anything, an aggravating circumstance.

We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor General or the constraints which the 401 Full Bench of the High Court has engrafted on the power conferred by Section 438. Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provisions which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by Section 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: Section 437 which deals with the power of courts other than the Court of Session and the High Court to grant bail in non-bailable cases and Section 439 which deals with the "special powers" of the High Court and the Court of Session regarding bail. The whole of Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail. That section reads thus :

"437. When bail may be taken in case of non- bailable offence. (1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life : Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail :
Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, 402 that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary-
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice. (4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons for so doing. (5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of an non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not 403 guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered."

Section 439 (1) (a) incorporates the conditions mentioned in Section 437 (3) if the offence in respect of which the bail is sought is of the nature specified in that sub-section. Section 439 reads thus :

"439. Special powers of High Court or Court of Session regarding bail. (1) A High Court or Court of Session may direct-
(a) That any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified :
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."

The provisions of Section 437 and 439 furnished a convenient model for the legislature to copy while enacting Section 438. If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully : Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in paragraph 29.9 that it had "considered" carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted" but had come to the conclusion that the question of granting such bail should be left "to the discretion of the court" and ought not to 404 be fettered by the statutory provision itself, since the discretion was being conferred upon superior courts which were expected to exercise it judicially. The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail. Sub-section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit", including the conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairement of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437.

This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of Section

438. Though sub-section (1) of that section says that the Court "may, if it thinks fit" issue the necessary direction for bail, sub-section (2) confers on the Court the 405 power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub-section. The controversy therefore is not whether the Court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute condition which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code.

Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn L. C. said in Hyman and Anr. v. Rose :

"I desire in the first instance to point out that the discretion given by the section is very wide........... Now it 406 seems to me that when the Act is so express to provide a wide discretion,...it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the Court wish it had kept a free hand."

Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law.

407

A close look at some of the rules in the eight-point code formulated by he High Court will show how difficult it is to apply them in practice. The seventh proposition says :

"The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised."

How can the Court, even if it had a third eye, assess the blatantness of corruption at the stage of anticipatory bail ? And will it be correct to say that blatantness of the accusation will suffice for rejecting bail, even if the applicant's conduct is painted in colours too lurid to be true ? The eighth proposition rule framed by the High Court says :

"Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fide are substantial and the accusation appears to be false and groundless."

Does this rule mean, and that is the argument of the learned Additional Solicitor-General, that the anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because mere allegation is never enough) that the proposed accusations are mala fide ? It is understandable that if mala fides are shown anticipatory bail should be granted in the generality of cases. But it is not easy to appreciate why an application for anticipatory bail must be rejected unless the accusation is shown to be mala fide. This, truly, is the risk involved in framing rules by judicial construction. Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts. The safety of discretionary power lies in this twin protection which provides a safeguard against its abuse.

According to the sixth proposition framed by the High Court, the discretion under Section 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless. Now, Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed "a non-bailable offence". We see no warrant for reading into this provision the conditions subject to 408 which bail can be granted under Section 437(1) of the Code. That section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence "shall not be so released" if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in Section 437(1) should govern the grant of relief under Section 438(1), nothing would have been easier for the legislature than to introduce into the latter section a similar provision. We have already pointed out the basic distinction between these two sections. Section 437 applies only after a person, who is alleged to have committed a non-bailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one of the pre-conditions of its application is that the person, who applies for relief under it, must be able to show that he has reason to believe that "he may be arrested", which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under Section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in Section 437(1), by reason of which the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the First Information Report. In the majority of cases falling under Section 438, that data will be lacking for forming the requisite belief. If at all the conditions mentioned in Section 437 are to be read into the provisions of Section 438, the transplantation shall have to be done without amputation. That is to say, on the reasoning of the High Court, Section 438(1) shall have to be read as containing the clause that the applicant "shall not" be released on bail "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life". In this process one shall have overlooked that whereas, the power under Section 438(1) can be exercised if the High Court or the Court of Session "thinks fits to do so, Section 437(1) does not confer the power to grant bail in the same wide terms. The expression "if it thinks fit", which occurs in Section 438(1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in Section 437(1). We see no valid reason for re-writing Section 438 with a 409 view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that ancipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.

A great deal has been said by the High Court on the fifth proposition framed by it, according to which, inter alia, the power under Section 438 should not be exercised if the investigating agency can make a reasonable claim that it can secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act. According to the High Court, it is the right and the duty of the police to investigate into offences brought to their notice and therefore, courts should be careful not to exercise their powers in a manner which is calculated to cause interference therewith. It is true that the functions of the Judiciary and the police are in a sense complementary and not overlapping. And, as observed by the Privy Council in King Emperor v. Khwaja Nasir Ahmed :

"Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. The functions of the Judiciary and the Police are complementary, not overlapping, and the combination of the individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function...."

But, these remarks, may it be remembered, were made by the Privy Council while rejecting the view of the Lahore High Court that it had inherent jurisdiction under the old Section 561A, Criminal Procedure Code, to quash all proceedings taken by the police in pursuance of two First Information Reports made to them. An order quashing such proceedings puts an end to the proceedings with the 410 inevitable result that all investigation into the accusation comes to a halt. Therefore, it was held that the Court cannot, in the exercise of its inherent powers, virtually direct that the police shall not investigate into the charges contained in the F.I.R. We are concerned here with a situation of an altogether different kind. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438 (1) are those recommended in Sub-section (2) (i) and

(ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438 (1), appropriate conditions can be imposed under Section 438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167 (2) of the Code is made out by the investigating agency.

It is unnecessary to consider the third proposition of the High Court in any great details because we have already indicated that there is no justification for reading into Section 438 the limitations mentioned in Section 437. The High Court says that such limitations are implicit in Section 438 but, with respect, no such implications arise or can be 411 read into that section. The plenitudes of the section must be given its full play.

The High Court says in its fourth proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a "special case" for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not "unguided or uncanalised", the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a "special case" for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a "special case". We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.

By proposition No. 1 the High Court says that the power conferred by Section 438 is "of an extraordinary character and must be exercised sparingly in exceptional cases only". It may perhaps be right to describe the power as of an extraordinary character because ordinarily the bail is applied for under Section 437 or Section 439. These Sections deal with the power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in which bail is generally applied for. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extra-ordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise. It is unnecessary to travel beyond it and subject the wide power conferred by the legislature to a rigorous code of self-imposed limitations.

412

It remains only to consider the second proposition formulated by the High Court, which is the only one with which we are disposed to agree but we will say more about it a little later.

It will be appropriate at this stage to refer to a decision of this Court in Balchand Jain v. State of Madhya Pradesh on which the High Court has leaned heavily in formulating its propositions. One of us, Bhagwati J. who spoke for himself and A. C. Gupta, J. observed in that case that:

"the power of granting 'anticipatory bail' is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail" that such power is to be exercised."

Fazal Ali, J. who delivered a separate judgment of concurrence also observed that:

"an order for anticipatory bail is an extraordinary remedy available in special cases". and proceeded to say:

"As Section 438 immediately follows s. 437 which is the main provision for bail in respect of non- bailable offences, it is manifest that the conditions imposed by s. 437 (1) are implicitly contained in s. 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under s. 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render the provisions of s. 437 nugatory and will give a free licence to the accused persons charged with non-bailable offences to get easy bail by approaching the Court under s. 438 and by-passing s. 437 of the Code. This, we feel, could never have been the intention of the Legislature. Section 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, 413 apart from the conditions mentioned in s. 437, there is a special case made out for passing the order. The words "for a direction under this section" and "Court may, if it thinks fit, direct" clearly show that the Court has to be guided by a large number of considerations including those mentioned in s. 437 of the Code."

While stating his conclusions Fazal Ali, J. reiterated in conclusion no.3 that "Section 438 of the Code is an extraordinary remedy and should be resorted to only in special cases."

We hold the decision in Balchand Jain (supra) in great respect but it is necessary to remember that the question as regards the interpretation of Section 438 did not at all arise in that case. Fazal Ali, J. has stated in paragraph 3 of his judgment that "the only point" which arose for consideration before the Court was whether the provisions of Section 438 relating to anticipatory bail stand overruled and repealed by virtue of Rule 184 of the Defence and Internal Security of India Rules, 1971 or whether both the provisions can, by the rule of harmonious interpretation, exist side by side. Bhagwati, J. has also stated in his judgment, after adverting to Section 438 that Rule 184 is what the Court was concerned with in the appeal. The observations made in Balchand Jain (supra) regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot therefore be treated as concluding the points which arise directly for our consideration. We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Sections 437 and

439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand Jain (supra) in an altogether different context on an altogether different point.

We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on com-

414

pliance with unreasonable restrictions. The beneficient provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein.

It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King Emperor that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the 'Meerut Conspiracy cases' observations are to be found regarding the right to bail which observe a special mention. In K. N. Joglekar v. Emperor it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H. L. Hutchinson it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the Court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure 415 Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.

Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh that "the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right."

In Gurcharan Singh v. State (Delhi Admn.) it was observed by Goswami, J. who spoke for the Court, that "there cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail."

In American Jurisprudence (2d, Volume 8, page 806, para

39) it is stated:

"Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end."

It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.

In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other 416 hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the state" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v. Captain Jagjit Singh, which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.

A word of caution may perhaps be necessary in the evaluation of the consideration whether the applicant is likely to abscond. There can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it. In his charge to the grand jury at Salisbury Assizes, 1899 (to which Krishna Iyer, J. has referred in Gudikanti), Lord Russel of Killowen said:

" ............. it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer classes who did not appear, for their circumstances were such as to tie them to the place where they carried on their work. They had not the golden wings with which to fly from justice."
417

This, incidentally, will serve to show how no hard and fast rules can be laid down in discretionary matters like the grant or refusal of bail, whether anticipatory or otherwise. No such rules can be laid down for the simple reason that a circumstance which, in a given case, turns out to be conclusive, may have no more than ordinary signification in another case.

We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the grounds that, after all "the legislature in its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected.

This should be the end of the matter, but it is necessary to clarify a few points which have given rise to certain misgivings.

Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non- bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to 418 the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.

Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.

Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.

Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.

Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.

We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is preposition No. (2). We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever." That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts 419 must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.

Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438 (1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided.

A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum.

There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of bail be passed under that section without notice to the public prosecutor? It can be. But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad-interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the F.I.R. as aforesaid. But this need not be followed as an invariable rule. The normal role should be not to limit the operation of the order in relation to a period of time.

420

During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2)(i), (ii) and

(iii). The Court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the Court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the F.I.R. in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The Court has attempted through those orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code.

The various appeals and Special Leave petitions before us will stand disposed of in terms of this Judgment. The judgment of the Full Bench of the Punjab and Haryana High Court, which was treated as the main case under appeal, is substantially set aside as indicated during the course of this Judgment.

S.R.				    Appeals allowed in part.
421